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T.S. Doabia, J.
Khumano Bai
vs
State Of Madhya Pradesh And Ors.
Decided On : 25 July, 1994
ELECTION - CHALLENGE - ELECTION PETITION - JURISDICTION - WRIT PETITION - MAINTAINABILITY - VOTERS' LIST - FINALITY - AMENDMENT - BAR TO INTERFERENCE BY COURTS IN ELECTORAL MATTERS - ARTICLE 243O OF THE CONSTITUTION OF INDIA - MADHYA PRADESH PANCHAYAT RAJ ADHINIYAM, 1993 - MADHYA PRADESH PANCHAYAT ELECTION RULES, 1994.
Fact of the Case:
Petitioner challenged the election of respondent No. 4 on the ground that the nomination paper of respondent No. 2 was wrongly accepted. It was alleged that as a person who was not eligible to take part in the process of election, has been permitted to contest the election, this has materially effected the result of the election.
Finding of the Court:
The court held that the election of respondent No. 4 can be challenged only by way of an election petition. The court further held that the remedy of election petition provided under the Act is not illusory and that the election petition should be entrusted to a person who can act as an independent authority. The court also held that the challenge to the voters' list prepared for holding the election in question cannot be entertained in the present petition.
Issues: 1. Whether the election of respondent No. 4 can be challenged by way of a writ petition under Article 226 of the Constitution of India? 2. Whether the remedy of election petition provided under the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 is illusory? 3. Whether the challenge to the voters' list prepared for holding the election in question can be entertained in the present petition?
Ratio Decidendi: 1. The court held that the election of respondent No. 4 can be challenged only by way of an election petition. The court relied on Article 243O of the Constitution of India, which provides that an election held to any Panchayat can be called in question only by way of an election petition. The court also relied on the Supreme Court decision in Nanhoo Mal and Ors. v. Hira Mal and others, AIR 1975 SC 2140, in which the Supreme Court held that the election to the office of the President could be challenged only by means of an election petition presented in accordance with the provisions of the Act and in no other way. 2. The court held that the remedy of election petition provided under the Act is not illusory. The court noted that the election petition has to be preferred before a Sub Divisional Officer and other officers designated in Section 122. The court also noted that these officers take active part in the process of election and are actively associated with the entire process of election. However, the court held that this does not make the remedy of election petition illusory. The court held that the election petition should be entrusted to a person who can act as an independent authority. 3. The court held that the challenge to the voters' list prepared for holding the election in question cannot be entertained in the present petition. The court noted that the law attaches great importance to the voters' list once it is finalized. The court also noted that Rule 10(5) proviso of the Madhya Pradesh Panchayat Election Rules, 1994 provides that once a notice of election has been issued under Rule 27, no amendment is permissible in the list.
Final Decision: The court dismissed the petition as not maintainable.
T.S. Doabia, J.
1. In this petition the election of Smt. Lakshmibai, respondent No. 4, has been challenged on the ground that nomination paper of one Manjit Kaur who figures as respondent No. 2, was wrongly accepted. It is alleged that as a person who was not eligible to take part in the process of election, has been permitted to contest the election, this has materially effected the result of the election.
2. Shri K. N. Gupta, learned Government Advocate appearing for the State has taken a preliminary objection to the maintainability of the petition on the ground that the election of respondent No. 4 can be challenged only by way of an election petition.
3. This position is not accepted by the counsel for the petitioner. To counter the argument raised by the State Shri Arun Mishra, learned counsel appearing for the petitioner has submitted that the remedy of election petition provided under the Act is illusory inasmuch as election petition has to be preferred before a Sub Divisional Officer and other officers designated in Section 122. According to him, as these officers take active part in the process of election and are actively associated with the entire process of election, the election petition should necessarily be entrusted to a person who can act as an independent authority.
4. A challenge has also been made to the voters' list which was prepared for holding the election in question.
5. In view of the preliminary objection raised by the State it would be appropriate to deal with the same at the first instance.
6. In the matter of challenge to an election of a citizen to a Gram Panchayat, Janpad Panchayat or Zila Parishad constituted under the Madhya Pradesh Panchayat Raj Adhiniyam, 1993, the Constitution Seventy Third Amendment Act, 1993, places these units of local Government at the same pedestal on which the State Legislature and Parliament are placed. Article 243-O provides in categoric terms that an election held to any Panchayat can be called in question only by way of an election petition. The discretion which hitherto before was exercised by the Courts under Article 226 prior to the aforementioned constitutional amendment is not available now. Earlier the view was that when the facts are not disputed, jurisdiction can be exercised under Article 226 of the Constitution of India to "nip the evil in the bud" or as H. S. Bedi, J. speaking for a Division Bench of Punjab and Haryana High Court in Nachhattar Singh and Anr v. State of Punjab and others, (1993) 14 Legal Reports and Statutes (Pb) 33 observed :-
"This Court would not therefore throw out the writ petition at the very threshold and compound the sense of injury and injustice inflicted on the petitioners with another one at the hands of the Court by circumscribing artificially the scope of Article 226. The Court in exercising restraint must not clip its wings, though interference should be made to use the oft repeated words in the rarest of the rare cases."
The above discretion is not available now and what was said by the Supreme Court in Nanhoo Mal and Ors. v. Hira Mal and others, AIR 1975 SC 2140 has been given constitutional recognition. It was said :
"............Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage."
7. The Supreme Court in Nanhoo Mal's case followed what the Court said as early as 1952 in the case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64. In this case, the nomination papers of N. P. Ponnuswami were rejected. He filed a writ petition in the High Court of Madras seeking a writ of certiorari. The prayer made was that the order passed by t
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